Filed 2/10/22 P. v. Smoot CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

TRAVIS SMOOT,

Defendant and Appellant.

F079396

(Super. Ct. No. BF164146A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. John D. 

Oglesby, Judge.

Benjamin Owens, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,

Catherine Chatman and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and 

Respondent.

-ooOoo-
2.

Defendant Travis Smoot was convicted by jury trial of second degree murder. On 

appeal, he raises various contentions related to his inability to plead not guilty by reason 

of insanity (NGI). He also contends his one-year prior prison term enhancement must be 

stricken due to passage of Senate Bill No. 136. We strike the prior prison term

enhancement, remand for resentencing, and affirm in all other respects.

PROCEDURAL SUMMARY

On May 12, 2016, the Kern County District Attorney filed a complaint against 

defendant alleging, among other things, the commission of first degree murder. (Pen. 

Code, § 187, subd. (a).)1 Defendant pled not guilty. 

On October 13, 2016, on defense counsel’s motion, the trial court suspended 

criminal proceedings and ordered the examination of defendant to determine his 

competence to stand trial (§§ 1367, 1368). Two psychologists examined defendant and 

filed written reports containing their recommendations. On December 6, 2016, the court 

found defendant competent to stand trial and reinstated criminal proceedings. 

On December 21, 2016, following a preliminary hearing, the district attorney 

charged defendant, by information, with one count of first degree murder (§ 187, 

subd. (a), count 1). The information further alleged defendant had suffered a prior 

“strike” conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 

1170.12, subds. (a)–(d)) and had served a prior prison term (§ 667.5, subd. (b)). 

On January 4, 2017, defendant pled not guilty to count 1 and denied all special 

allegations. 

On October 9, 2018, defendant moved under Marsden2for the appointment of 

substitute counsel because defense counsel would not allow him to plead NGI. The trial 

1 All statutory references are to the Penal Code unless otherwise noted.

2 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
3.

court denied the motion and ruled the decision whether to enter the plea was tactical and 

committed to the discretion of defense counsel. 

On October 24, 2018, defense counsel again moved to suspend proceedings to 

determine defendant’s competence to stand trial (§ 1368). The trial court granted the 

motion, suspended criminal proceedings, and appointed a psychologist to again examine 

defendant (§§ 1367, 1368). Upon defense counsel’s objection to the psychologist’s 

written report, a second psychologist was appointed to examine defendant. The second

psychologist filed her report with the court. On January 14, 2019, the court, having 

considered the reports of the two psychologists, again found defendant competent to 

stand trial and reinstated criminal proceedings. 

On March 13, 2019, trial commenced. On March 25, 2019, a jury found defendant 

not guilty of first degree murder and guilty of the lesser included offense of second 

degree murder. 

In a bifurcated proceeding, the trial court found the prior strike conviction 

allegation not true and the prior prison term allegation true. On May 14, 2019, the court 

sentenced defendant to 15 years to life on the second degree murder conviction and an 

additional one year for the prior prison term enhancement. 

On June 3, 2019, defendant timely filed a notice of appeal. 

FACTS

On December 1, 2015, defendant, an inmate of Kern Valley State Prison, killed his 

cellmate, Larry Thomas Hite, in the early hours of the morning. Later that morning, 

Correctional Officer Joseph Harmon was conducting a security check and saw defendant 

standing in his cell. Officer Harmon greeted defendant and defendant told Officer 

Harmon he had killed Hite. 

Officer Harmon was unable to see Hite because a curtain had been draped to 

obscure the back portion of the cell. Defendant refused to remove the curtain. Officer 

Harmon secured defendant’s hands through the food cuff port of the cell and sounded an 
4.

alarm to summon other officers for assistance. The cell door was opened, and another 

correctional officer, Officer Ray Adair, took defendant into custody. Officer Adair 

escorted defendant to the rotunda area of the prison and recalled defendant saying, 

“That’s what he gets. That’s what he gets.” 

Officer Harmon and Correctional Sergeant Mark Hildebrand entered the cell and 

discovered Hite’s body. He was lying on his stomach and his face, neck, and chest area 

were in a pool of blood. His hands and feet were tied behind him. A pen was lodged in 

one ear and a pencil in the other. His eyes were gouged out and a cane was inserted in 

his rectum. Envelopes were on his back and the words “case closed” were written on one 

of them. The words “karma,” “bitch,” “woman killer,” and “rapist” were written in blood 

on his shirt. 

Officer Adair and Sergeant Hildebrand then escorted defendant to another 

building. During the transport, defendant said he and Hite had been drinking coffee all 

night and Hite was talking about a rape he had gotten away with. Defendant said he told 

Hite to stop discussing the rape or he would kill him. Defendant admitted that, when Hite 

did not stop, defendant tortured him all night before killing him at approximately 4:00 

a.m. that morning. 

Two audio recordings of interviews conducted with defendant were entered into 

evidence and played for the jury: one conducted by correctional officers on the day of 

the murder, and another conducted by a deputy district attorney and district attorney 

investigator several months later. Transcripts were made available at trial and are part of 

the clerk’s transcript on appeal. The transcripts reveal the following:

Defendant received Miranda3 warnings before each interview and agreed to speak. 

He recounted much of what was set forth above. He related drinking coffee in the early 

morning hours but denied using any drugs or alcohol. He confirmed, among other things, 

3 Miranda v. Arizona (1966) 384 U.S. 436.
5.

torturing Hite by strangling him with a sheet—pulling the sheet with his hands while 

pushing down on Hite’s neck with his foot, allowing him to catch his breath, and then 

strangling him again. He recounted poking both of Hite’s eyes out with a pen. Using the 

palm of his hand, he repeatedly pounded a pen into Hite’s ear and stuck a pencil in his 

other ear. He also described other aspects of the assault.

During the interviews, defendant repeatedly expressed his aversion to the rapes 

and murders Hite allegedly confessed to. He told Hite, “Shut the fuck up or I’m gonna 

kill you.” He warned Hite again, “[D]on’t make me fuckin’ have to kill you, dude.” He 

warned Hite that he would “flip the fuck out” if Hite continued to talk about raping 

women. 

In the interviews, defendant confirmed that no one told him to kill Hite and that he 

“knew better.” Defendant said he did not regret the murder because Hite was a “little 

wild, moralless animal” with “no values.” He called Hite a “disgrace” and told the 

interviewers, “[I]f you don’t grow any values mentally ... with your people then who are 

you?” He viewed the murder of Hite like a veterinarian putting a wild animal down and 

said, “And that’s how I felt. If I woulda—if I woulda felt that he was a human being in 

my cell, then I would have treated him like one. You know?” He continued, “I can only 

go so far before I snap and just flip out.... And that’s what happened. He was tal—he 

was running his mouth so bad. Like I’m running my mouth now, but—and I’m running it 

in a good way, but he was just—just talking and talking and talking about all the bad shit 

just going against all my moral values—everything I’ve—I’ve tried to stand for he was 

breaking down my mentality.” 

Defendant explained that “[h]e just wasn’t of my flock ... of my pack. You 

know? And, um I’m not with all that shit. You know?” Defendant said, “I wanna have a 

state of mind and I wanna—I wanna be okay with myself. I wanna fall asleep and—and 

to wake up in the morning and say I’m a good kid. You know? My mom raised a good 

kid. My dad was in prison, you know? But my mom did her part. She raised a good 
6.

youngster and, uh, I’m all right. But if I just stay there in that fuckin’ just ... just 

disgusting bullshit and I’m a part of it. You know? You know, guilty by a proxy—guilty 

[by] association. You throw yourself in with the monkeys and you become a monkey. 

You know? And I—I just had to get out of that—that cell.... I know too much to where 

I’m not gonna contaminate my life with shit like that. And I just had—I’ve harvested so 

much hate in my heart that it showed when I killed him.” 

Defendant was also asked the following questions during one of his interviews and 

gave the following answers:

“Q1: (Unintelligible) you got any rage issues, [defendant]?

“A: Oh yeah.

“Q1: Do ya?

“A: I do, but I steer it towards good things now.

“Q1: So you’re telling me you have rage issues, but you can control 

it?

“A: Oh yeah, I’m gonna, um, I’m gonna think .... I’m not a wild 

animal. You know? Think about shit. (Unintelligible). I think about stuff. 

I think about—I think about things before I act. I knew what I was doing.

“Q1: You knew what you were doing?

“A: Oh hell yeah.

“Q1: There’s no question about that.

“A: No—no.

“Q1: No one can ever accuse you of not being in control of yourself 

that you didn’t know what you were doin’?

“A: Nope. Nope, and I know it’s, like, a, uh, and that’s gonna be 

my downfall if I wanna have any way out of this, but you know what? It’s 

gonna be the DA—the DA’s gonna put me away for my life and, um, I’m 

gonna keep my honor and life goes on.” 
7.

As defendant related repeatedly choking Hite with a sheet, his interviewer 

commented, “[Because] at that point you could [have] decided hey to just leave him 

alone.” Defendant responded, “Oh yeah I could of.” Defendant stated, “I could [have]—

[Hite] could [have] got out cheap but there’s—fuck that no ya know an eye for an eye.” 

In another of his interviews, defendant likened his behavior to the Old West, when horse 

thieves and other criminals were lynched before the sheriff even arrived. 

Defendant also mentioned Hite had a bible and said, “I hate seeing that shit. A—a 

murder fucking rapist dude come into prison and try to claim God and shit. Ya know 

when he’s fuckin’ goin’ to hell.” When asked if he viewed Hite as a hypocrite, he 

responded, “Oh yeah he ain’t got no clean time.” 

Defense Evidence

Defendant

Defendant testified he had been moved to Kern Valley State Prison on 

November 29, 2015, from the Special Housing Unit (SHU) at Corcoran State Prison 

where he had been in solitary confinement. 

Defendant was paranoid about being placed in a new environment which he 

viewed as “hostile.” He noted he had “mental issues from isolation but not as severe as 

being put in—right into harm[’]s way to a predator like that”—referring to Hite. While 

in isolation at Corcoran State Prison, defendant would hallucinate, talk to himself, and 

imagine others being present. He admitted having had prior mental problems and stated 

he was put on medication for depression and other mental issues. He said he was housed 

in a separate area of the SHU dedicated to persons with similar backgrounds. He said he 

did not experience hallucinations outside of the SHU. 

Defendant testified he and Hite had been in the same cell for only three days. 

According to defendant, the two inmates in the neighboring cell were in a sexual 

relationship and Hite was friends with those inmates. Defendant testified Hite wanted to 

establish a sexual relationship with him, Hite bullied and tried to fondle him, and he 
8.

rebuffed Hite’s advances. He testified Hite would try to corner him in the back of the cell 

and would call him belittling names. Defendant warned Hite that, if that behavior 

continued, defendant would get violent and would “flip out on [Hite] until [he, defendant] 

didn’t know what [he] was doing.” Hite said he was not afraid of defendant and he had 

raped and killed before. 

Defendant testified this type of behavior continued during their time together in 

the cell and the tension between them escalated. Defendant claimed Hite was “messing 

with [his] mental stability, [his] mental state” and was “[t]rying to like break [him] in to 

be like his little ... like his fish or something ....” Defendant told Hite he was not gay 

and was not interested in a sexual relationship. 

Defendant said Hite was hostile from the start. For example, when defendant tried 

to show Hite his paperwork describing his offenses, Hite tried to slap it out of his hands 

and said, “I don’t care about paperwork. I rape motherfuckers. I kill—I kill bitches.” At 

another time, Hite called defendant a “little punk” and said, “I’ve killed better. I’ve 

killed worse. You ain’t nothing to me.” Hite said he would rape and stab defendant, he 

had done it before to others, and he had killed and buried multiple people. 

Defendant further testified that, on the day of the murder, Hite started relating past 

murders and rapes he had committed. He told defendant he would do the same to him 

and would “poke [him] full of holes with a knife.” Hite said “he’[d] killed before like 

that.”4 

According to defendant, a fight ensued when Hite began threatening to rape 

defendant and began hitting defendant with his cane. Defendant tried to elbow him back 

and was yelling, “I’ll flip out on you back, dude. I’ll flip out on you back.” The fight 

continued. Defendant testified he only remembered the beginning of the fight and not the 

4 At the conclusion of defendant’s case-in-chief, the parties agreed to the following 

stipulation: “It is stipulated between the parties that [Hite] suffered a conviction for first 

degree murder on September 11th, 2015. The victim of the murder was a woman.” 
9.

end, stating, “I came to. I know I came to. I don’t really remember much of it.” He 

remembered having his hands on Hite’s neck, trying to bang Hite’s head in, and knocking 

Hite unconscious. He also recalled stabbing Hite in the eye with a pencil. 

On cross-examination, defendant was shown pictures of Hite bound on the floor of 

the cell. Defendant admitted, “I tied his hands behind—I put his hands behind his back 

and his feet behind his back. I tied his feet and his hands.” Defendant recognized the 

binding around Hite’s neck, as well, and admitted he was responsible for tying all the 

bindings together in a “hogtie fashion.” Defendant admitted impaling Hite with a pen, 

pencil, and cane and writing on Hite’s clothing. At other times in his testimony, 

defendant denied remembering some of the above details. 

Defendant said he was in fear of “being killed or strangled or being raped” by 

Hite. He said Hite threatened to rape him and tried to rape him. The prosecutor played 

an audio clip of defendant’s interview with the deputy district attorney and district 

attorney investigator in which defendant denied any “sex play” between himself and Hite 

prior to the murder. In the tape, defendant said, “I thought about saying that, you know 

what I’m saying? But no, there wasn’t.” At trial, defendant claimed he had lied to his 

interviewers when he denied any sexual physicality between him and Hite and stated, 

“[H]e came at me with the cane to rape me.” 

Dr. Kupers

Dr. Terry Kupers, a medical doctor with a master’s degree in social psychiatry, 

testified he had studied inmates within penal institutions since the early 1970’s. 

According to Dr. Kupers, beginning in the late 1970’s and into the 1980’s, prisons began 

to use solitary confinement with more frequency. Dr. Kupers was often asked to testify 

in connection with class action lawsuits about the “psychiatric harm of long-term solitary 

confinement.” As a result, he developed expertise in the area. 

Dr. Kupers testified that a “relatively stable person without any preexisting mental 

disorder of any kind,” when placed in solitary confinement will experience near-
10.

immediate anxiety often resulting in panic attacks. Such inmates often have trouble with 

breathing, concentration, and memory. They might develop the sense that they will never 

get out and that they are going to die. 

Dr. Kupers said, “There’s a stunning amount of anger that develops and it’s 

beyond the rational what you would think the anger about being put in an isolation cell. 

It’s even greater and it mounts over time.” Inmates in isolation will often suppress the 

anger because they know their release from solitary confinement is contingent on their 

good behavior. He likened the situation to PTSD5in returning war veterans and stated 

the pent-up anger can manifest itself in an inappropriate degree when the inmate really 

gets angered. 

Dr. Kupers said solitary confinement inmates often exhibit compulsive 

behaviors—pacing, excessive cleaning. They develop thinking disorders and distorted 

thinking. They “see the walls closing in on them. They report hallucinations. They see 

things in the wall. They look at the cinderblock walls and start seeing faces and they 

become paranoid. Paranoia is a very big problem ....” 

Paranoia, anger, and anxiety are experienced simultaneously and operate to 

accelerate each other. This impairs the inmate’s judgment and can lead the inmate to 

perceive a greater risk than might be presented by a given situation. Dr. Kupers testified, 

“The tendency [of an inmate] to act with aggression is greater and the ability to 

discriminate when that aggression is just or not just is lost.” 

Dr. Kupers said there is a “dominance hierarchy in prisons” that requires prisoners 

to “establish themselves as a tough person and able to handle themselves in prison. To 

have any kind of reflection otherwise is extremely dangerous and you can be sexually 

assaulted, raped, and killed.” Any sort of sexual comment, advance, or provocation 

requires a prisoner to fight lest they be stigmatized and victimized. 

5 Posttraumatic stress disorder.
11.

DISCUSSION

I. NGI Issues

Defendant contends the trial court deprived him of his statutory right to enter a 

plea of NGI. He further contends he was denied his Sixth and Fourteenth Amendment 

rights to effective assistance of counsel because defense counsel would not allow him to 

plead NGI, and the trial court erred by denying his Marsden motion to obtain substitute 

counsel on that ground. 

We have reviewed the record and determine that any errors in the trial court’s 

failure to allow defendant to plead NGI, defense counsel’s refusal to allow defendant to 

plead NGI, and the trial court’s denial of defendant’s Marsden motion for new counsel 

were harmless.

A. Background

At the Marsden hearing, defendant gave the trial court the following reason for 

wanting new counsel:

“I would rather go state appointed and I’d like to try to waive more 

time on my case. And to certain factors we don’t see eye to eye with, I’d 

like to go a certain route. I wanted to put an insanity plea in because the 

person that I was celled up with, he had put me through mental duress and a 

certain mental state that I went through before I reacted badly towards 

this—he was a rapist and he killed a woman and buried her in the woods 

and he was threatening me and trying to rape me and it had a negative 

reaction on my side and so I was trying to put a different plea in and I want 

to waive more time to work on my case ....” 

Defendant stated he wanted “[t]o start new, ... start fresh.” 

The trial court expressly asked defendant if he wished to enter an “insanity plea” 

in order to present information of his mental state to the jury. Defendant responded:

“Yes. And [defense counsel], Ms. Lee, wanted to go imperfect selfdefense and it wasn’t. It was—they had a—there was a mental aspect, me 

in reaction towards this person, me being celled with him and the cell was 

capped to where I couldn’t get out of the cell. When he started showing 
12.

himself, predatorial behavior, and it had an [e]ffect on my mental state. 

There’s a mental aspect there that had nothing to do with self-defense.” 

The trial court asked defense counsel if she had any response, to which she 

replied:

“I’ll just note I’ve secured an expert. His name is Terry Kupers, ... 

who I believe has an MD, but is more a psychiatrist or psychologist.... 

[Defendant] was in the Corcoran SHU for about 16 months leading up to 

being single celled with [Hite]. [Hite] was his first cellmate after a long 

period in the SHU. Dr. Kupers does quite a bit of research on how the SHU 

affects people’s mental state. He worked on the Pelican Bay class action 

lawsuit and has done many other cases dealing with inmates who come out 

of the SHU and the kind of symptoms they have and the behaviors that they 

have. We discussed previously that I don’t think it fits into an NGI 

defense .... [¶] ... [¶] [B]ut I think the mental state of coming out of SHU 

can either make for an imperfect self-defense or we can also talk about—I 

mean, in terms of mental health issues or mental state issues, we’ve already 

talked about self-defense in general. But if the jury doesn’t believe a pure 

self-defense, the SHU information can help make it an imperfect selfdefense or if the Court would allow a heat of passion manslaughter. So 

I’ve worked on that mental state information with an expert in how it’s 

going to play into potential defenses. The last time we talked about going 

NGI was weeks or months ago and I don’t think the information we have 

from the expert legally fits into an NGI defense because of the certain 

constraints of the law with that. So we have discussed that at length.

“The issue this morning is that [defendant] would like more time 

before trial. I didn’t announce ready this morning. I received some new 

information on Friday on discs that, I need to make sure I’ve gone through 

everything. So once I’ve reviewed that I otherwise am ready and I’m ready 

to discuss the mental state issues going on at the time of the incident.” 

The trial court said it would give defendant the last word. Defendant stated:

“I just need more time. I don’t see eye to eye on certain aspects, you 

know, respectfully, for background. I just—I know what happened, you 

know. I know [Hite is] not the victim. He came at me first. He provoked 

me sexually and physically and was messing with my mental state ....” 

Defendant disagreed with defense counsel that his SHU confinement was relevant 

to his defense. Defendant was adamant the problem was he was put in a cell with a 

sexual predator who “portrayed predatorial sexuality aspects towards [defendant] and 
13.

mess[ed] with [his] mental state.” He stated, “[Hite] came at me and he ended up dead 

on the ground. I had a negative reaction towards it.” Defendant continued to assert the 

SHU had no relevance to his case and concluded by saying, “I’m the victim.” 

The trial court advised defendant that the issues he raised as to his mental state 

could be raised at trial without the need to enter an NGI plea. In its concluding remarks, 

the court stated, “To the extent there are disagreements about trial strategies or tactics, the 

ultimate decision in determining the appropriate strategy or tactic rests solely with the 

attorney ....” The court denied defendant’s Marsden motion. 

B. Analysis

1. Failure to Allow NGI Plea

The decision of whether to enter a plea of NGI “is a matter within the defendant’s, 

rather than counsel’s, ultimate control.” (People v. Clark (2011) 52 Cal.4th 856, 893.) 

“[A] defendant has the right to personally enter the plea of his choice regardless of what 

his counsel thinks of the merits of an NGI plea.” (People v. Henning (2009) 178 

Cal.App.4th 388, 394 (Henning).) However, the erroneous denial of a defendant’s right 

to enter his desired plea warrants reversal only if the defendant was prejudiced by the 

error. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800, citing Cal. Const., art. VI, 

§ 13.) As we discuss below, assuming the trial court erred by failing to allow defendant 

to plead NGI, we conclude defendant was not prejudiced by that error.

A defendant’s right to “personally enter the plea of his choice” is a statutory right 

under section 1018. (Henning, supra, 178 Cal.App.4th at pp. 397–398.) Generally, when 

determining whether a defendant has been prejudiced by an error of state statutory law, 

we ask whether it “ ‘is reasonably probable that a result more favorable to the appealing 

party would have been reached in the absence of the error.’ ” (People v. Watson (1956) 

46 Cal.2d 818, 837 (Watson); Henning, at p. 398.) In this context, reasonable probability 

“ ‘does not mean more likely than not, but merely a reasonable chance, more than an 

abstract possibility.’ ” (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 800.)
14.

Before engaging in the harmless error analysis set forth in Watson, however, we 

must first determine whether federal constitutional violations are also at issue. If a 

federal constitutional violation is implicated, we apply a more stringent harmless error 

analysis. (Chapman v. California (1967) 386 U.S. 18, 23–24 (Chapman).) “[B]efore a 

federal constitutional error can be held harmless, the court must be able to declare a belief 

that it was harmless beyond a reasonable doubt.” (Id. at p. 24.)

In Henning, as in our case, the defendant contended he was prejudiced by the trial 

court’s failure to allow him to plead NGI. (Henning, supra, 178 Cal.App.4th at p. 394.) 

In determining whether the Watson or Chapman harmless error analyses applied, the 

Henning court held that no federal due process violation occurs under such circumstances 

where the defendant “receive[s] full consideration of the facts regarding his desired 

insanity defense.” (Henning, at pp. 398–399, citing Pennywell v. Rushen (9th Cir. 1983)

705 F.2d 355, 357–358.) 

Here, defendant received full consideration of the facts regarding his NGI defense. 

At trial, he put forth all the evidence he contended at the Marsden hearing and all the 

evidence he contends on appeal were relevant to the defense. Among other things, he 

testified he suffered hallucinations while in the SHU but denied suffering hallucinations 

outside of the SHU. He testified to his prior mental problems and stated that Hite was 

“messing with [his] mental stability.” He testified to the events leading up to the murder 

and to the effect Hite’s alleged confessions had on his mental state. In addition, defense 

counsel put forth the testimony of Dr. Kupers, who confirmed the effect the SHU can 

have on inmates and their mental processes. 

Because defendant obtained a full consideration of the facts underlying his desired 

NGI defense, his claim does not rise to a federal constitutional level and “is therefore 

subject to Watson harmless error analysis.” (Henning, supra, 178 Cal.App.4th at p. 398.) 

In such situations, “a trial court’s failure to allow a defendant to plead NGI is harmless 

when the record affirmatively shows the insanity defense lacks evidentiary support.” (Id. 
15.

at p. 399.) Accordingly, we next consider whether defendant’s NGI defense had 

evidentiary support.

The foundation for an NGI defense is set forth in statute: “In any criminal 

proceeding, including any juvenile court proceeding, in which a plea of not guilty by 

reason of insanity is entered, this defense shall be found by the trier of fact only when the 

accused person proves by a preponderance of the evidence that he or she was incapable 

of knowing or understanding the nature and quality of his or her act and of distinguishing 

right from wrong at the time of the commission of the offense.” (§ 25, subd. (b).) 

Although section 25 is written in the conjunctive—seemingly requiring proof of 

both (1) incapability of knowing or understanding the nature and quality of the offending 

act and (2) incapability of distinguishing right from wrong at the time of the act—the 

California Supreme Court has held the foregoing prongs operate as “distinct and 

independent bases upon which a verdict of not guilty by reason of insanity might be 

returned.” (People v. Skinner (1985) 39 Cal.3d 765, 769.)

Defendant contends there was “affirmative credible evidence to support an 

insanity defense.” He first claims, “[t]he crime was committed in a manner that would 

raise a question of sanity in the mind of any person.” From a lay perspective, his 

assertion may be true. From a legal perspective, however, the gruesome nature of a 

murder is not, of itself, indicative of an inability to understand the nature and quality of 

the act committed nor an inability to appreciate the difference between right and wrong, 

which are the alternative grounds for an NGI defense.

Defendant relies on People v. Clemons (2008) 160 Cal.App.4th 1243 (Clemons), 

but Clemons does not support his position. In Clemons, the crime at issue was custodial 

possession of a manufactured weapon in violation of section 4502. The defendant was 

discovered to be in possession of the weapon (a razor blade from a disposable razor) after 

he used it to inflict a deep wound in his arm that required 18 stitches. When asked 

repeatedly what he had used to cut himself, the defendant spat out the razor blade and 
16.

“grinned sheepishly at the sheriff’s deputies.” (Clemons, supra, 160 Cal.App.4th at 

pp. 1246, 1253.) Unlike the self-mutilation and apparent lack of self-awareness exhibited 

by the defendant in Clemons, defendant’s acts were not directed toward himself and the 

record reflects he was fully cognizant and aware of his acts and their effect. Defendant 

testified he repeatedly warned Hite that he would get violent and would “flip out on 

[Hite]” if Hite continued to belittle him or tried to get sexual with him. In addition, 

defendant admitted during an interview that he warned Hite he would “kill” him if Hite 

continued to talk about past rapes and murders, that he was in control of himself when he 

committed the murder, and that he “knew what [he] was doing.” The record reflects 

defendant was fully aware of his actions.

Notably, California law expressly allows the imposition of a criminal penalty on a 

person found guilty of committing a torturous act and an additional penalty on a person 

found guilty of first degree murder where the “murder was especially heinous, atrocious, 

or cruel, manifesting exceptional depravity”—i.e., a “conscienceless or pitiless crime that 

is unnecessarily torturous to the victim.” (§§ 206, 190.2, subd. (a)(14).) There is no 

presumption of insanity associated with such crimes. The fact the murder was committed 

in a gruesome manner is not evidence tending to prove legal insanity. 

Defendant also relies on his psychological reports obtained pursuant to 

section 1368 because they “discussed hallucinations and multiple psychiatric diagnoses.” 

Defendant notes the reports indicated he was not malingering. But the purpose of those 

reports was to determine defendant’s competence to stand trial—not to determine 

defendant’s mental condition at the time of the murder. 

The test to determine the mental competence of a defendant to stand trial is 

different from that used to establish an insanity defense. (People v. Anderson (1976) 59 

Cal.App.3d 831, 837, fn. 2 [“Insanity under Penal Code sections 1026 and 1027 deals 

with insanity at the time of the offense and is a different species of mental condition than 

present insanity.”].) “A defendant is mentally incompetent [to stand trial] if, as a result of
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a mental health disorder or developmental disability, the defendant is unable to 

understand the nature of the criminal proceedings or to assist counsel in the conduct of a 

defense in a rational manner.” (§ 1367, subd. (a).) As noted above, the insanity defense 

requires different proof—i.e., an incapability of “knowing or understanding the nature 

and quality of [the offending] act [or an incapability] of distinguishing right from wrong 

at the time of the commission of the offense.” (§ 25, subd. (b), italics added; People v. 

Skinner, supra, 39 Cal.3d at p. 769.) 

We have reviewed the psychological reports relied upon by defendant and 

conclude they do not provide support for an insanity defense. None of the psychologists 

opined defendant was incapable of knowing or understanding the nature and quality of 

his acts at the time they occurred or incapable of distinguishing between right and wrong 

at that time. While it is true that certain of the reports indicate defendant had mental 

health issues involving schizophrenia (paranoid type) and psychosis, that evidence, in and 

of itself, does not support an insanity defense—especially where the reports do not make 

any reference to the effect of those diagnosed conditions on defendant at the time of the 

murder. (See, e.g., People v. Blakely (2014) 230 Cal.App.4th 771, 779–780 [directed 

verdict of sanity was held proper where the evidence showed the defendant suffered from 

paranoid schizophrenia but failed to show he did not know the nature and character of his 

act or was incapable of distinguishing right from wrong].)

Importantly, defendant’s own pretrial interview statements taken on the day of the 

murder and several months thereafter, as well as his testimony at trial, demonstrate 

defendant was not delusional at the time of the murder. He was not suffering from 

hallucinations. He was not detached from reality. The fact that his interviews and 

testimony may contain inconsistencies goes to his credibility but not to his sanity. There 

is nothing in either his interview statements or his testimony to suggest he was not 

responding to real, rather than imagined, events at the time he committed the murder. His 

statements and testimony demonstrate he was acting of his own volition and knew what 
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he was doing. He even warned Hite he would kill him if he continued to discuss the rape 

and murder of women. The evidence clearly demonstrates, without contradiction, that 

defendant understood the nature and quality of his acts at the time he committed the 

murder.

Likewise, defendant’s testimony and pretrial interviews clearly indicate he knew 

right from wrong. His act of murder was in response to what he viewed as disgraceful 

and moralless behavior—the claimed rape and murder of women. According to 

defendant, such heinous acts went against all his values. He even stated to his 

interviewers that he “knew better” and that his mom raised him to be a good person. The 

record demonstrates defendant knew the difference between right and wrong and chose to 

commit murder notwithstanding. There was no evidence to the contrary. 

In summary, the record affirmatively demonstrates the insanity defense was 

baseless. Had the NGI plea been allowed and a second phase of trial on defendant’s 

sanity been conducted, the trial court would have been justified in issuing a directed 

verdict against defendant on the defense. (See People v. Blakely, supra, 230 Cal.App.4th 

at p. 775 [“Because a plea of insanity is an affirmative defense in which the defendant 

has the burden of proof, the court may, through the grant of a directed verdict, ‘remove 

the issue of sanity from the jury when the defendant has failed to present evidence 

sufficient to support the special plea.’ ”]; People v. Severance (2006) 138 Cal.App.4th 

305, 324 [directed verdict of sanity proper where no substantial evidence of insanity is 

presented]; People v. Ceja (2003) 106 Cal.App.4th 1071, 1089 [same]; Leach v. Kolb

(7th Cir. 1990) 911 F.2d 1249, 1255–1258 [same; no miscarriage of justice results].) 

We conclude there is no reasonable probability defendant would have obtained a 

better result had the trial court allowed him to enter an NGI plea. 

2. Denial of Marsden Motion and Ineffective Assistance of Counsel

“ ‘When a defendant seeks substitution of appointed counsel pursuant to

[Marsden], “the trial court must permit the defendant to explain the basis of his 
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contention and to relate specific instances of inadequate performance.” ’ ” (People v. 

Streeter (2012) 54 Cal.4th 205, 230.) “ ‘A trial court should grant a defendant’s Marsden

motion only when the defendant has made “a substantial showing that failure to order 

substitution is likely to result in constitutionally inadequate representation.” ’ ” (Ibid.) 

“ ‘A defendant is entitled to relief if the record clearly shows that the appointed counsel is 

not providing adequate representation or that defendant and counsel have become 

embroiled in such an irreconcilable conflict that ineffective representation is likely to 

result.’ ” (People v. Taylor (2010) 48 Cal.4th 574, 599.) 

On appeal, we review a trial court’s denial of a Marsden motion for abuse of 

discretion. (People v. Taylor, supra, 48 Cal.4th at p. 599.) “ ‘Denial is not an abuse of 

discretion “unless the defendant has shown that a failure to replace counsel would 

substantially impair the defendant’s right to assistance of counsel.” ’ ” (People v. 

Streeter, supra, 54 Cal.4th at p. 230; accord, People v. Loya (2016) 1 Cal.App.5th 932, 

944.)

When a trial court erroneously denies a Marsden motion, we reverse unless we 

conclude the error was harmless under Chapman v. California, supra, 386 U.S. 18—that 

is, unless we “ ‘conclude beyond a reasonable doubt that [the] denial of the effective 

assistance of counsel did not contribute to the defendant’s conviction.’ ” (People v. 

Sanchez (2011) 53 Cal.4th 80, 92.)

Defendant contends the trial court was required to grant his Marsden motion and 

substitute counsel. In Henning, the court concluded that when the trial court learned 

defense counsel had wrongly refused to allow the defendant to enter an NGI plea, the 

court should have granted the Marsden motion to substitute counsel. (Henning, supra, 

178 Cal.App.4th at p. 404.) The court also concluded, however, that the error was 

harmless beyond a reasonable doubt because, despite the vigorous efforts of defense 

counsel, “no credible evidence could be mustered for an insanity defense.” (Id. at 

pp. 404–405.)
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We apply Henning’s harmless error analysis here, concluding that if the trial 

court’s denial of defendant’s Marsden motion was error in this case, the error was 

harmless beyond a reasonable doubt. If the court had substituted counsel and new 

counsel had allowed defendant to plead NGI, the evidentiary support for an insanity 

defense would still have been lacking and the defense still would have failed. Having 

determined defendant’s NGI defense to be without merit as a matter of law, we conclude 

beyond a reasonable doubt that defendant would have fared no better with new counsel. 

(Henning, supra, 178 Cal.App.4th at pp. 404–405 [even though defense counsel wrongly 

refused to allow the defendant to enter an NGI plea, the trial court’s failure to substitute 

counsel was harmless beyond a reasonable doubt because no credible evidence supported 

an insanity defense].) “Reversal would serve no purpose other than to require the trial 

court to conduct a sanity trial on a doomed defense.” (Id. at p. 402.) Thus, the trial 

court’s failure to grant the Marsden motion for new counsel was harmless beyond a 

reasonable doubt.

For the same reasons, defense counsel’s refusal to allow defendant to plead NGI 

was also harmless under any standard. Allowing the NGI plea would not have altered the 

outcome of the trial. In other words, defendant cannot show that but for counsel’s 

alleged deficient performance there was a reasonable probability the result of the 

proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 

694; People v. Ledesma (1987) 43 Cal.3d 171, 217–218; see Strickland, at p. 697 [we 

may adjudicate an ineffective assistance claim solely on the issue of prejudice, without 

determining the reasonableness of counsel’s performance]; In re Welch (2015) 61 Cal.4th 

489, 516 [same].)

II. Prior Prison Term Enhancement

Defendant contends Senate Bill No. 136 applies retroactively to him and 

requires that his prior prison term enhancement be stricken. The People concede and 

we agree.
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Senate Bill No. 136 (2019−2020 Reg. Sess.) amended section 667.5, 

subdivision (b) to limit prior prison term enhancements to only prior terms that were 

served for a sexually violent offense as defined by Welfare and Institutions Code 

section 6600, subdivision (b). (§ 667.5, subd. (b), as amended by Stats. 2019, ch. 590, 

§ 1, eff. Jan. 1, 2020.) Defendant’s prior prison term was served for a 2010 motor vehicle 

theft or related extortion, not for a sexually violent offense, and thus it must be stricken. 

The People correctly point out that the proper disposition is to remand to the trial 

court for resentencing. In resentencing, “the trial court is entitled to consider the entire 

sentencing scheme. Not limited to merely striking illegal portions, the trial court may 

reconsider all sentencing choices.” (People v. Hill (1986) 185 Cal.App.3d 831, 834.) 

DISPOSITION

The one-year prior prison term enhancement imposed pursuant to section 667.5, 

subdivision (b), is stricken and the matter is remanded to the trial court for resentencing. 

In all other respects, the judgment is affirmed. 

LEVY, Acting P. J.

WE CONCUR:

SMITH, J.

MEEHAN, J.